There’s a growing debate over the need for vaccine passports.
Nationwide, governors are calling on state employees to get vaccinated against COVID-19 or face weekly testing in order to work.
But in New York City, Mayor Bill deBlasio has mandated that all businesses there only allow customers that can prove they’ve been vaccinated.
Vaccine Passports for Small Businesses?
Some believe this vaccine passport trend will continue and other cities are likely implement similar policies. And some businesses are already following suit.
According to a report from Philadelphia magazine, some restaurants have already implemented their own vaccine mandates for employees and customers.
Eventually, you’ll likely have to decide if your business is going to do the same. In order to determine if requiring employees or customers be vaccinated against COVID-19 is legal and what you should do, we’ve contacted some legal experts to answer some of the questions you probably have right now.
Can you require employees to get the COVID vaccine?
Right now, it would seem that would depend on where you are and what you do. Marco Sarkovich, attorney at Slate Law Group, explains some of the boundaries.
“Whether or not an employer should mandate employees receive the vaccine depends,” he says. “It matters whether the vaccination policy is job-related or is consistent with a business necessity.”
He says employers have a compelling case if unvaccinated workers are putting employees and customers or the general public at risk. Certain industries like healthcare, retail and travel will have more justification.
Sarkovich points to one state law with an important caveat.
“Under California state law, an employer may require employees to receive an FDA-approved vaccination against COVID-19,” he says, “only if the employer doesn’t discriminate against or harass employees or applicants on the basis of a protected characteristic.”
That includes disability, perceived disability, or religion.
Can an employee refuse to work if others aren’t vaccinated against COVID-19?
Small businesses also need to understand what to do if an employee refuses to work because others aren’t vaccinated.
Matt Spiegel, an attorney and founder and CEO of Lawmatics, says remote work comes into play.
“If this happens, then the management should encourage other employees to take the jab,” Spiegel says, “especially if that particular employee is immuno-compromised and is a member of the vulnerable population.”
He says if that doesn’t work, the business can provide the option to work from home permanently.
There are other gray areas that will need to be ironed out, like the question of whether you can require employees to have COVID tests if they’re not vaccinated.
Collen Clark is a lawyer and founder at Schmidt & Clark. He says, “Companies are empowered to require COVID testing only in specific circumstances that are clearly stated in a written and agreed policy.”
In other words, your small business needs to have agreements in place. Having this kind of COVID testing and vaccination policy is the way to avoid legal issues.
Can you require employees and customers to wear face masks?
Clark also says that wearing masks are covered by local rules. However businesses are private and they can enforce a different set on their own premises. That means small businesses can set a different standard from their municipality.
Again, it’s important to have a policy. And that needs to include customers.
“Companies with clear operation rules that prohibit anti-maskers can refuse entry and/or business to individuals who will refuse to wear masks,” Clark says.
Can you require employees and customers to show proof of a COVID vaccine?
The debate over vaccine passports is really starting to heat up nationwide. And eventually, you’ll have to decide whether or not you will require customers to show a COVID vaccine passport.
In California, the lawyers at Michelman and Robinson say, it’s “permissible for a business owner to require customers to show proof of COVID-19 vaccination before shopping.”
You’ll want to check the laws in your state to see if your business can require customers and employees to show proof of vaccination.
Obviously, some businesses in other states have already begun doing this.
If a business does require its employees to be vaccinated in order to work, the lawyers at Michelman and Robinson say the employer must ensure those records are kept secure.
“You must retain confidential records of employee vaccinations,” they say. “This avoids privacy concerns and potential liability under the ADA.”
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